Dear Mr C.,
On 3 April 1999 you lodged a complaint with the European Ombudsman against the European Commission. It related to the European Commission's decision to close the complaint you have made concerning the alleged breach of Directive 90/313/EEC(1) by the Italian authorities.
On 21 June 1999, I forwarded the complaint to the European Commission for its opinion. The Commission sent the translation into Italian of its opinion on 13 September 1999 and I forwarded it to you with an invitation to make observations, if you so wished. On 13 October 1999, I received your observations on the Commission's opinion. You sent further letters on 25 October and 3 December 1999.
I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

Following the fire which occurred on the premises of the chemical firm Enichem of La Macchia (in the Italian province of Manfredonia) on 2 August 1997, the Italian authorities decided to start a process of re-industrialisation of the damaged area.
According to the complainant, the competent authorities started the re-industrialisation despite the existence of residual toxic waste which can endanger the health of the local population. On 1 October 1997, he therefore wrote a first letter to the Prefetto of Foggia, asking to have access to information on the environment in accordance with Council Directive 90/313/EEC. A copy of this letter was sent to the Commission.
On 1 December 1997, Mr C. wrote a further letter to several Italian authorities a copy of which was also sent to the Commission. In this letter the complainant put forward his dissatisfaction with the information he had obtained concerning the fire which occurred in the area of Enichem's premises.
Later on, on 13 February 1998, the complainant wrote to Directorate General XI of the European Commission, this time complaining explicitly about the application of Directive 90/313/EEC on the freedom of access to information on the environment by the Italian authorities. The letter was registered by the Commission's services with the complaint number 98/4648. By letters dated 17 July 1998 and 3 August 1998, signed respectively by the Head of the legal unit of Directorate General XI and by the Secretary General of the Commission, the institution notified the complainant that the Commission had opened an official complaint for a possible breach of Directive 90/313/EEC by Italy.
On 1 October 1998 the responsible Commission's services informed Mr C. that no breach of Community law could be identified in the case. Therefore they announced the intention of the Commission to close the procedure. The complainant was invited to submit observations concerning any possible new elements within one month from the receipt of the letter.
In the absence of reply, the Commission's services decided to close the case on 11 November 1998.
On 25 November 1998 the Commission received a letter from the complainant who disagreed with the decision of closing the case and raised some doubts on the efficiency of the Commission's services since he had received the letter sent out on 1 October 1998, only on 10 November 1998.
On 27 January 1999 the Commission therefore sent a letter to the complainant explaining the reasons to close the case.
Against this background the complainant lodged a complaint on 3 April 1999 with the European Ombudsman. Mr C. complained against the Commission's decision to close the inquiry concerning the alleged wrong implementation of Council Directive 90/313/EEC without starting an infringement procedure against Italy before the European Court of Justice.

THE INQUIRY

The Commission's opinion
The comments from the European Commission on the complaint are in summary the following:
The Commission firstly referred to the letters from the complainant of 1 October and 1 December 1997, underlining that the receivers of these letter were several Italian authorities and that the institution only received a copy of them.
By contrast, the letter dated 13 February 1998, in which the complainant explicitly complained about the implementation of Council Directive 90/313/EEC in Italy, has been registered by the Commission as a formal complaint with reference number 98/4648.
On 16 July 1998, the Commission sent a letter to the complainant, in which it expressed interest in receiving more information on aspects other than access to information. The Commission asked to be informed about possible dumping and deposit of dangerous waste and soil contamination because in 1976, due to a fire in the industrial chemical plant of Enichem (21 years before the fire which occurred in August 1997), a large part of the soil around the installation had been contaminated by a leak of arsenious anhydride and no decontaminate action had been taken as regards the soil in this area. The complainant supplied the information requested by the Commission on these issues on 10 August 1998.
The Commission replied on 9 September 1998 informing the complainant that it had decided to register this letter as a new complaint with reference number 98/4802.
In its opinion the Commission pointed out that it should be considered that while the first complaint, n° 98/4648, was based on the possible breach of Directive 90/313/EEC on public access on environmental information by the Italian authorities, the second one, n° 98/4802, was based first of all on the possible breach of Directive 75/442/EEC as amended by Directive 91/156/EEC(2) (with reference to the contaminated soil dumping) and then, following further information submitted by the complainant, also on the possible breach of Directives 85/337/EEC(3) (on the assessment of the effects of certain public and private projects on the environment) and Directive 96/82/EEC(4) (with reference to the supposed environmental danger caused by the abandon of three landfills for urban solid waste in the same area).
On 1 October 1998, the competent services informed the complainant that they had concluded the investigation concerning complaint n° 98/4648. After having assessed all the information submitted by the complainant and those received from the Italian authorities, the Commission concluded that no breach of Directive 90/313/EEC could be identified.
Therefore, pursuant to the agreement between the Commission and the European Ombudsman following the Ombudsman's own initiative inquiry 303/97/PD into the Commission's administrative procedures in relation to citizens' complaints about national authorities, the institution communicated to the complainant its intention to close the case. The complainant was invited to submit any possible further information revealing new evidences that Community law was being breached, within one month of receipt of the letter. He was advised that, in the absence of a reply, the case would be closed. The complainant was also informed that a case could always be reconsidered and re-opened, even after it is closed, where the Commission is informed of any new elements indicating a possible breach of Community law.
Since no reply to the letter of 1 October 1998 was received, the Commission closed the case during a meeting of 11 November 1998.
The Commission then referred to the letter received by the complainant on 25 November 1998, in which he disagreed with this decision and pointed out that, since he had received the letter dated 1 October 1998 only on 10 November 1998, it is from this date that the period of one month to reply should have started. The Commission regretted that the postal service took such a long time, but it held that it could not be responsible for this as the date of the postmark on the envelope showed that the letter was sent out from Brussels on 1 October 1998. Since this kind of letters are not sent as registered mail, the Commission considered them as received after a reasonable time.
The institution underlined that deciding to close the case 42 days after sending the letter communicating it to the complainant cannot be considered as a way of denying him the right to defend his position. Moreover, the Commission stressed that complainant can, at any time, present the same complaint again and that the Commission is never exempted from the obligation of examining it.
As concerns the reasons to close the inquiry on complaint n° 98/4648, the Commission firstly considered that the Italian authorities had correctly played their role in giving the requested information. Secondly, it underlined that Article 4 of Directive 90/313/EEC explicitly refers to the national judicial system to appeal against silence, inadequate reply or unreasonable refusal to give information by national authorities. Thirdly, the Commission referred to the Treaty provision concerning the Commission's discretionary power in taking the decision of opening infringement procedures. However, the institution highlighted that it does not consider this power to be purely discretionary and that accordingly it had set up guidelines for the management of the complaints and infringement procedures. The Commission pointed out that the procedure had been correctly followed in the present case and that the complainant had always been properly informed on the progress of the inquiry.
In the same letter the Commission furthermore informed the complainant that the second complaint n° 98/4802, which was also the subject of a petitions (ref. N° 874/98) before the Committee on petition of the European Parliament, was still under investigation.
By letter of 9 July 1999 the Commission had replied to two further letters of the complainant dated 3 April and 28 May 1999, still concerning the decision to close the case n° 98/4648 on Directive 90/313/EEC. It its reply the Commission stated that, since no further evidences had been transmitted, there were no grounds to reconsider its original position.
The complainant's observations
The Ombudsman forwarded the Commission's opinion to the complainant with an invitation to make observations.
As concerns the handling of complaint n° 98/4648, the complaint basically maintained his original claims.
Regarding complaint n° 98/4802, if on one hand he took note that the Commission was waiting for the information requested from the Italian authorities, on the other hand he stressed that the Commission should have taken action against them in order to require a prompt reply.

THE DECISION

Introductory remarks
To avoid misunderstanding, it is important to recall that the EC Treaty empowers the European Ombudsman to inquire into possible instances of maladministration only in the activities of Community institutions and bodies. The Statute of the European Ombudsman specifically provides that no action by any other authority or person may be the subject of a complaint to the Ombudsman. On the basis of the these provisions, the Ombudsman's inquiries have therefore only been directed towards examining whether there has been maladministration by the European Commission.
The complainant's allegations concerning complaint n° 98/4802, which is still under investigation by the Commission's services, were not part of the original complaint to the Ombudsman. Therefore, this aspect of the case will not be dealt with by the Ombudsman in the present decision.
1 The Commission's decision to close the file on the complaint
1.1 The complaint concerns the Commission's decision to close the inquiry concerning the alleged wrong implementation of Council Directive 90/313/EEC without starting an infringement procedure against Italy before the European Court of Justice.
1.2 In its opinion the Commission stated that, after examining the documents sent by the complainant and the information submitted by the Italian authorities it considered that there was no breach of Community law and on 1 October 1998 its services informed the complainant of the intention to close the file. The complainant was invited to present any possible new evidences concerning the case. Since no reply had been received by the complainant, in a meeting of 11 November 1998, the Commission closed the case.
1.3 The Commission also regretted that the complainant received the letter of 1 October more than a month later, but it underlined that it was exclusively due to a mail system problem and that it could not be held responsible for this.
1.4 The Commission's administrative procedure in relation to citizen's complaints about national authorities had been the object of the own initiative inquiry n° 303/97/PD launched by the Ombudsman on 14 April 1997. As a result of this own initiative inquiry the Commission inform the complainant on the intention to close the file with an invitation to submit observations.
1.5 The Ombudsman considers that in the present case, by letter of 1 October 1998, the Commission informed the complainant of its intention not to open an infringement procedure against Italy, giving reason for its decision and inviting him to submit his observations within a month.
1.6 The complainant received the letter sent on 1 October 1998 by the Commission only on 10 November 1998. The Commission regretted this inconvenience. The Ombudsman considers that the Commission could not be held responsible for the length of time taken by the postal system to deliver this. Thus, the period of time of 42 days from the sending of the letter on 1 October 1998 to closing of the case on 11 November 1998 seems to be reasonable.
1.7 The Ombudsman considers from the above that the Commission had properly complied with its commitments given following the Ombudsman's own initiative inquiry 303/97/PD(5) and that the complainant was properly kept informed on the progress of this case.
2 Conclusion
On the basis of the European Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman has therefore decided to close the case.
The President of the European Commission will also be informed of this decision.
Yours sincerely
Jacob Söderman

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(1) Council Directive of 7 June 1990 on the freedom of access to information on the environment, Official Journal L 158, 23/06/1990, p. 56.

(2) OJ L 78, 26/03/1991, p. 32.

(3) OJ L 175, 05/07/1985, p. 40.

(4) OJ L 10, 14/01/1997, p. 13.

(5) See Ombudsman Annual Report 1997, p.270